State v. Estrada

• Decision Date: 18 February 1992
• Docket Number: No. 9360,9360
• Citation: 603 A.2d 1179,26 Conn.App. 641
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Manuel ESTRADA.

Page 1179

603 A.2d 1179

26 Conn.App. 641

STATE of Connecticut v. Manuel ESTRADA.

No. 9360.

Appellate Court of Connecticut.

Argued Dec. 5, 1991.

Decided Feb. 18, 1992.

Robert G. Golger, with whom, on the brief, was Howard T. Owens, Jr., Trumbull, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Robert A. Lacobelle, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and LANDAU and HEIMAN, JJ.

LANDAU, Judge.

The defendant, Manuel Estrada, appeals from his conviction of burglary in the first degree in violation of General Statutes § 53a-101(a)(1), assault in the first degree in violation of General Statutes § 53a-59(a)(1), and four counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95(a). He received a total effective sentence of twenty years incarceration. On appeal, the defendant raises five claims. He contends that the trial court improperly (1) instructed the jury on the principles of accessory liability in its charge on assault in the first degree, (2) admitted the testimony of a state's witness as evidence of an "admission by silence" and instructed the jury that the defendant's failure to respond to an accusatory statement could be considered an admission of guilt, (3) denied his motion for judgment of acquittal as to the count of assault in the first degree because the state failed to prove that the victim sustained serious physical injury, (4) admitted into evidence a written statement of a witness that was not based on personal information for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), and (5) instructed the jury that the defendant could be found guilty as a principal in the assault although the state presented no evidence to substantiate such an instruction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the night of January 22, 1988, there was a knock on the door of the second floor apartment at 466 Kossuth Street in Bridgeport. Rose Roman Crawley opened the door and was grabbed and forced back into the apartment by a short black male, one of three men standing outside the door. The three armed men, two black and one Hispanic, entered the apartment in search of individuals they referred to as "Junior," "Felipe" and "Macho." In the apartment at that time were John Roman, his sisters Maria Roman, Rose Roman Crawley and Carmen Maldonado, his mother Marina Roman, and a friend of one of his sisters, Carmen Orellano. Immediately upon entering the apartment, the shorter black male locked all of the women in the bathroom. The three men then searched the apartment. After an unsuccessful search, they returned to the kitchen. The shorter black male turned out the light. At the time the lights were turned out, the short black male was standing approximately ten feet to John Roman's left, the tall black male was standing about five feet to his right and the defendant was standing in the middle of the room, twelve feet in front of him. About four seconds later, John Roman was shot twice, once in each leg. Before falling, he saw flashes from a gun being fired from the center of the room, where the defendant was standing. The three assailants then ran out of the apartment.

The women broke out of the bathroom and found John Roman sitting in a pool of blood on the floor in the kitchen. He was taken to Bridgeport Hospital and was treated for the gunshot wounds. He remained in the hospital overnight, experienced pain, was required to use crutches for over two months and was permanently scarred by the bullet wounds.

I

The defendant first argues that the trial court should not have instructed the jury on the principles of accessory liability in its charge on assault in the first degree, thus impermissibly broadening the theory of liability beyond the allegations of the pleadings. ¹ Specifically, on the basis of State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), the defendant claims that because he was charged in the amended information as a principal to the crime of assault in the first degree, he could not be an accessory to that crime. Thus, he claims that the trial court improperly instructed the jury. We disagree.

There is no practical significance in being labeled an "accessory" or a "principal" for the purpose of determining criminal responsibility. See General Statutes (1875 Rev.) tit. XX, c. XIII, part X; State v. Gargano, 99 Conn. 103, 109, 121 A. 657 (1923); State v. Hamlin, 47 Conn. 95, 118 (1879). The modern approach wholly abandons the common law terminology and provides that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. See W. LaFave & A. Scott, Criminal Law (1972) § 63, p. 501; see also Model Penal Code (1985) § 2.06, comment 6. Connecticut has taken the same approach through General Statutes § 53a-8. ² See State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985); State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971). It is well established in this state that there is no such crime as "being an accessory." State v. Foster, 202 Conn. 520, 528, 522 A.2d 277 (1987). Rather, the accessory statute, General Statutes § 53a-8, merely provides an alternative under which criminal liability for the underlying substantive crime may be proved. State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985). The law in this state clearly holds that the fact that the defendant was not formally charged as an accessory does not preclude his being so convicted. State v. Crump, 201 Conn. 489, 493, 518 A.2d 378 (1986); State v. Johns, 184 Conn. 369, 373-74 n. 7, 439 A.2d 1049 (1981); State v. Greene, 11 Conn.App. 575, 583-84, 528 A.2d 855 (1987). " ' "[A] defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial liability." State v. Fleming, 198 Conn. 255, 268 n. 15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986).' " ³ State v. Rice, 25 Conn.App. 646, 649, 595 A.2d 947 (1991), quoting State v. Hopkins, 25 Conn.App. 565, 568-69, 595 A.2d 911 (1991).

On appeal, the defendant contends that the trial court improperly instructed the jury on the theory of accessory liability because, like the defendant in State v. Steve, supra, he premised his whole defense on the belief that he was being charged solely as a principal and not as an accessory and that he did not have notice that the state would request an instruction on accessory liability. We disagree and conclude that this case is more analogous to State v. Hopkins, supra, where this court upheld the defendant's conviction as an accessory, than to State v. Steve, supra.

"In State v. Steve, supra, [208 Conn. at] 40 , the state had alleged in both its substitute information and its bill of particulars that the defendant was being prosecuted as a principal. In addition, the state orally affirmed, pursuant to the defendant's request, that the defendant was the principal with regard to the charges. Id., [at] 41-42 . Only after the state had finished presenting evidence in its case-in-chief did the defendant himself testify that another person had actually committed the crime. On appeal, this court concluded, and the Supreme Court affirmed, that the trial court improperly charged the jury on accessorial liability. In reaching this conclusion, the Supreme Court determined that the court's instruction was improper because it was 'not in substantial conformity with either the allegations in the bill of particulars or the evidence in the state's case-in-chief....' Id., [at] 46 ." State v. Hopkins, supra, 25 Conn.App. at 568, 595 A.2d 911.

In State v. Hopkins, supra, the defendant, who was charged as a principal, withdrew his request for a bill of particulars regarding the original information ⁴ and did not submit a request for a bill of particulars after the state filed its substitute information. Moreover, the defendant was in possession of information that should have alerted him to the increased possibility that he could be convicted as an accessory. Specifically, the defendant heard the victim testify that the defendant held him while the defendant's companion attacked him. Additionally, the defendant obtained, through pretrial discovery, a copy of the police incident report that indicated that the defendant was not the individual who inflicted the wounds on the victim. Id., at 569-70, 595 A.2d 911.

Here, the state initially charged the defendant as an accessory to the crime of assault in the first degree and alleged that the defendant "intentionally aided one Timothy Dobson, while the latter, with intent to cause serious physical injury to one John Roman, did cause serious physical injury to the said John Roman ... in violation of Section 53a-59(a)(1) and Section 53a-8 of the Connecticut General Statutes." The state filed an amended information, in response to the defendant's motion for a bill of particulars, ⁵ in which it charged the defendant as a principal with the crime of assault in the first degree and alleged that the defendant "with intent to cause serious physical injury to one John Roman, did cause serious physical injury to said John Roman ... in violation of Section 53a-59(a)(1) of the Connecticut General Statutes." In its charge to the jury, the trial court instructed on accessory liability. ⁶

At the hearing on the motion for the bill of particulars the state explained, on three occasions, that it was alleging that the defendant was the principal, but that it was anticipating testimony in support of an accessory theory of liability, and thus would request an instruction on accessorial liability if such evidence did in fact...